When I was younger and my kids were little, the last thing I would have wanted, if something happened to me and my wife, would be a situation where my children are surrounded by people they don’t know, who don’t have their best interest at heart or who are fighting over raising them. Remember how Michael Jackson left his children exposed to a fight among his family, the children’s nanny, the biological mother, and others? How terrible for those children! The lesson is clear. You must name guardians for your minor children in the event of your death or incapacity. Failing to do so puts your children at risk When you take the following 3 steps you can assure your children will be provided and cared for, as you want and intend.
Step #1: Secure Your Children’s Financial Future
Providing enough financial resources for your children’s care and upbringing if something happens to you is your responsibility. Whether it’s through life insurance, savings, or some other means, take action to put a plan in place. To protect what your children will receive, establish a trust for any life insurance benefits and/or savings that your appointed guardians will use in raising your children. If your estate is large enough, plan the trust to avoid estate taxes.
Step #2: Identify Your Children’s Guardian
Believe it or not, most parents have not named a guardian and at least one alternate for their minor child(ren). Consider some of the following qualities to help you select a guardian:
- · Available time
- · Physical and mental ability
- · Genuine concern for your children’s welfare
- · A good relationship with your children
- · Agreement with your moral and religious beliefs
- · Financial resources
- · Geographic proximity to where your children now live
Step #3: Legally Document Your Decisions
Parents too often agree upon a guardian for their children and even make their wishes known to their families, yet, they have not expressed their wishes in their estate planning documents. Not detailing your decisions in a legally binding document means they may not be followed. You are potentially placing your children in a situation where every family member has equal priority of guardianship. This leaves the decision about the care of your children to the legal system and a judge who doesn’t know you or your kids. Legal documentation is particularly important if you want a friend to care for your children, as courts will almost always choose a family member over a friend.
Basic Law Definitions
Healthcare Power of Attorney: A legal document that allows an individual to designate another person to make medical decisions for him or her when he or she cannot make decisions for himself or herself.
Living Will: The purpose of this Living Will Declaration is to document your wish that life-sustaining treatment, including artificially or technologically supplied nutrition and hydration, be withheld or withdrawn if you are unable to make informed medical decisions and are in a terminal condition or a permanently unconscious state.
Your General Power of Attorney: (sometimes referred to as Financial Power of Attorney) – these are people you have chosen to manage your financial affairs if you are unable to do so.
Your Trust: Sometimes called revocable trust or living trust. The trust holds and distributes your hard-earned assets during your lifetime and upon your death – as you have designated. A trustee, generally yourself, manages and distributes the trust assets according to the terms you designate in the trust.
Don’t let the complexities of financial or guardianship decisions prevent you from completing your estate planning. An estate planning attorney who has worked with many families can use that experience to help you make decisions. An open discussion of your personal concerns with a lawyer who understands your financial and legal situation can assure your peace of mind – and your children’s future.
Final Thoughts
Remember: “An ounce of prevention is worth a pound of cure.” When making your estate plans or when probating an estate or administering a trust, do not go it alone. Be sure to engage a Cincinnati estate planning attorney.
For more information about estate planning, probate, or trust administration in Cincinnati (and throughout the rest of Southwest Ohio) and to review free resources regarding estate planning, probate, or trust administration, visit my website. If you have questions regarding this article or a particular legal matter, feel free to contact me at 513-399-PLAN (7526).
David H. Lefton is an Estate Planning and Probate Attorney. He is a partner in the law firm of Barron, Peck, Bennie & Schlemmer.